23 U.S.C. § 327 — Surface transportation project delivery program

(a) Establishment — (1) In general: The Secretary must run a "surface transportation project delivery program" (called "the program" here). (2) Assumption of responsibility: (A) With a written agreement — which can be a memorandum of understanding — the Secretary can hand off, and a state can take on, the Secretary's environmental-review duties under the National Environmental Policy Act (NEPA) for one or more highway projects in that state. (B) If a state takes this on, several things follow: the Secretary can also hand off other federal environmental-law duties tied to reviewing a specific project; at the state's request, the Secretary can also hand off NEPA duties for railroad, public transportation, or multimodal projects; in a state that has taken on transit-project duties, a transit-funding recipient can ask the Secretary to keep handling a specific public transportation project instead; but the Secretary can never hand off the core planning duties in sections 134, 135, 5303, or 5304 of title 49, or the job of deciding Clean Air Act conformity under 42 U.S.C. § 7506. (C) A state takes on this responsibility under the same rules the Secretary would have had to follow. (D) Any Secretary duty the state didn't specifically agree to take on stays with the Secretary. (E) This section doesn't take away any other agency's own power or authority over a project. (F) The Secretary can't make a state give up otherwise-allowed project delivery methods as a condition of joining. (G) A state can use its apportioned highway funds (under section 104(b)(2)) to pay attorney's fees tied to a project it's handling this way, including fees awarded under 28 U.S.C. § 2412. (b) State Participation — (1) Every state can apply to join the program. (2) Within 270 days after the MAP-21 amendments took effect, the Secretary had to update the application rules, covering at least: which projects or project types the state plans to use this authority for; proof the state has the money to do the job; and evidence the state gave public notice and took comments on joining, including copies of the comments received. (3) Public notice: the state must announce its intent to join at least 30 days before applying, and must publish its full application and take public comments the way state law requires for public notices. (4) The Secretary can only approve a state's application if: the state met the application rules in (2); the Secretary finds the state has the money and staff to do the job; and the state's top highway official signs the written agreement described in (c). (5) If a state wants to take on a duty that would have required the Secretary to consult another federal agency, the Secretary must ask that agency's views before approving. (c) Written Agreement — The agreement must: (1) be signed by the governor or the state's top transportation official in charge of highway construction; (2) follow whatever form the Secretary requires; (3) have the state agree to take on the listed responsibilities, agree that federal courts can enforce them, certify that state law lets it do the job and matches the Freedom of Information Act (including court review of public-records decisions), and agree to keep enough money to do the job; (4) require the state to give the Secretary any information reasonably needed to check the state is doing the job right; (5) last no more than 5 years, unless the state qualifies for the 10-year term below; (6) be renewable; and (7) run 10 years for a state that has been in this program (or an earlier version of it) for at least 10 years. (d) Jurisdiction — (1) Federal district courts have exclusive power to hear a lawsuit against a state for failing to carry out its responsibilities under this section. (2) That kind of lawsuit follows the same legal rules that would apply if the Secretary, not the state, had taken the actions being challenged. (3) The Secretary has the right to step into ("intervene" in) any such lawsuit. (e) Effect of Assumption of Responsibility — Once a state takes on responsibility under (a)(2), it is solely responsible and solely liable for carrying it out — without needing further sign-off from the Secretary — until the program ends as described in (j). (f) Limitations on Agreements — Nothing here lets a state take over any of the Secretary's rulemaking power under federal law. (g) Audits — (1) To make sure a state is following its agreement (including all federal laws it took on under (a)(2)), the Secretary must: meet with the state within 180 days of signing to review how the agreement is going and plan the first annual audit; audit the state each year for its first 4 years; if a state's agreement runs longer than 5 years, audit its first 5 years; and make sure each audit — including public comment and responses — takes no more than 180 days start to finish. (2) The public must be able to comment on each audit, and the Secretary must respond to those comments within 60 days after the comment period ends. (3) An audit team, chosen by the Secretary in consultation with the state, carries out each audit; the state must get a real chance to review and comment on who's proposed for that team. (h) Monitoring — After a state's fourth year in the program, the Secretary must keep checking that the state is following its agreement, including providing enough money to do so. (i) Report to Congress — The Secretary must send Congress an annual report on how the program is being run. (j) Termination — (1) Termination by Secretary: The Secretary can end a state's participation if the state isn't doing the job right — but only after notifying the state of the problem, giving it at least 120 days to fix it (and, if the governor asks, a detailed explanation of what needs fixing), and then finding that the state still hasn't fixed it satisfactorily. (2) Termination by the state: The state can quit anytime with at least 90 days' notice to the Secretary, following whatever conditions the Secretary sets. (k) Capacity Building — The Secretary, working with state officials, can run education, training, and peer-exchange programs to help states build the ability to join the program and to help participating states share information and work together. (l) Relationship to Locally Administered Projects — A state with this authority can, if a local government asks, either use that authority on the local government's behalf for a locally run project, or give the local government guidance on streamlining its own environmental paperwork under NEPA and similar state rules. (m) Agency Deemed to Be Federal Agency — A state agency carrying out responsibilities under this section's agreement is treated as a federal agency for purposes of 28 U.S.C. § 2412 (the law governing attorney's fee awards).